U.S. attorneys in New York have filed a complaint against three veal producers for allegedly exporting meat containing vertebral column to Japan, which had just reopened its borders to U.S. imports after a two-year ban over a bovine spongiform encephalopathy (“mad cow”) scare. United States v. Atl. Veal & Lamb LLC, No. 11-1034 (E.D.N.Y., filed March 3, 2011). Under U.S.-Japan trade agreements, beef and beef products cannot contain vertebral column, and when Japanese inspectors discovered the breach, it immediately again closed its borders to U.S. beef imports, allegedly costing the U.S. livestock, beef and meat industry “at least $500 million in losses.” The prosecutors seek to enjoin the defendants from violating U.S. Department of Agriculture regulations and allege that unless enjoined, the companies “will continue to sell and offer for transportation in commerce misbranded meat and meat food products for human consumption abroad that fail to comply with [export verification]…
Category Archives Issue 385
A federal court in California has denied a motion for summary judgment filed by the company that makes YoPlus® probiotic yogurt and certified a class of consumers alleging that it misled them in its product marketing. Johnson v. General Mills, Inc., No. 10-00061 (C.D. Cal., summary judgment denied March 3, 2011; class certification granted March 7). The court disagreed with the company’s attempt to characterize its product statements as “either true or . . . untestable and subjective statements of opinion” or “mere puffing.” According to the court, General Mills sought to “isolate each particular statement or image and divorce it from its full context.” Rather, the court determined that “properly considered in context, General Mills successfully communicated a ‘common message that eating Yo-Plus aids in the promotion of digestive health in ways that eating normal yogurt does not.’” The court reportedly granted class certification from the bench. See Law360, March…
A federal court in California has reportedly fined King Tuna $1.8 million for marking its products with a patent number despite not following the patented process in preparing its fish. King Tuna v. Anova Food, Inc., No. 07-07451 (C.D. Cal., decided February 24, 2011). The patent apparently related to pre-cooling filtered wood smoke before applying it to tuna. King Tuna sued a competitor alleging that the patent had been infringed; the competitor countersued claiming, among other matters, that King Tuna had falsely advertised and falsely marked its products. While most recent litigation involving the false-marking statute involves expired patents, this case apparently involved a valid patent. According to the court, King Tuna’s false advertising and marking “could not have been a mere innocent oversight,” because the company, while claiming that its preservation process involved filtered wood smoke, never pre-cooled the wood smoke “as required by the “619 patent.” To determine…
Finding no clear state precedent, a federal court in Ohio has certified to the state supreme court a question arising in a case involving insurance coverage for Listeria-contaminated meats that led to the destruction of 1 million pounds of meat products in 2006. HoneyBaked Foods, Inc. v. Affiliated FM Ins. Co., No. 08-1686 (N.D. Ohio, order entered March 3, 2011). The question certified is as follows: In light of the Supreme Court of Ohio’s opinion in Anderson v. Highland House Co., 93 Ohio St. 3d 547 (2001), does the reasonable-expectations doctrine apply to a commercial general liability “all-risk” insurance policy, so that coverage, which otherwise would be excluded under the terms and conditions of the policy, is afforded, provided the trier of fact determines that the insured reasonably expected, when purchasing the policy, that the policy would cover the loss at issue. HoneyBaked Foods claimed a loss of approximately $8 million under…
Iowa Representative Annette Sweeney (R-Alden) has introduced a bill (H.F. 431) that would make it illegal to gain employment under false pretenses on farms or slaughterhouse processing facilities and then produce and distribute undercover videos. The Iowa Senate is reportedly expected to consider similar legislation. Defined in the bill as “animal facility interference,” shooting undercover videos at slaughterhouses would be considered anywhere from an aggravated misdemeanor up to a Class D felony, punishable by up to five years in prison and fined as much as $7,500. Similar penalties would apply to “animal facility fraud,” which would occur when a person is convicted of willfully obtaining “access to an animal facility by false pretenses for the purpose of committing an act not authorized by the owner of the animal facility” or “makes a false statement or representation as part of an application to be employed at the animal facility, if the…
California EPA’s Office of Environmental Health Hazard Assessment (OEHHA) has issued a notice of its intent to list ethanol in alcoholic beverages and Chinese-style salted fish to the list of chemicals known to the state to cause cancer (Prop. 65). Inclusion on the list requires that products containing these ingredients include label warnings. OEHHA is apparently basing its action on the inclusion of these substances in an International Agency for Research on Cancer (IARC) monograph. The agency is requesting comments by April 4, 2011. According to OEHHA, “[b]ecause these are ministerial listings, comments should be limited to the question whether IARC has identified the specific chemical or substance as a known or potential human or animal carcinogen. Under this listing mechanism, OEHHA cannot consider scientific arguments concerning the weight or quality of the evidence considered by IARC when identifying a specific chemical or substance and will not respond to such…
Mexico has reportedly approved its first pilot program to grow genetically modified (GM) corn. Noting that “it is necessary to advance the use of biotechnology to reduce imports and promote national production,” the Ministry of Agriculture approved the planting of GM yellow corn on approximately 2.5 acres in the northern state of Tamaulipas. Since 2009 when it began allowing GM corn on small experimental fields, the Mexican government has evidently received 121 requests for permits and allowed approximately 170 acres. According to the ministry, a pilot program is granted after an experimental field has been deemed safe by government inspectors. Although large commercial farms in northern Mexico have welcomed the GM corn to compete with U.S. imports, smaller farms in southern Mexico have expressed concern that the biotech crops could contaminate native red, blue and yellow corn varieties. See Reuters, March 8, 2011.
The European Food Safety Authority’s (EFSA’s) Scientific Panel on Food Additives and Nutrient Sources Added to Food (ANS) “has assessed the safety of a group of caramel colors authorized for use in food in the European Union,” concluding that all four classes “are neither genotoxic, nor carcinogenic and that there is no evidence to show that they have any adverse effects on human reproduction or for the developing child.” The ANS Panel evidently reevaluated the safety of Class I Plain Caramel or Caustic Caramel (E 150a), Class II Caustic Sulfite Caramel (E 150b), Class III Ammonia Caramel (E 150c) and Class IV Sulfite Ammonia Caramel (E 150d), setting a group acceptable daily intake (ADI) of 300 mg per kg body weight per day (mg/kg bw/day). It also set a more restrictive ADI of 100 mg/kg bw/day for caramel E150c. As ANS Panel Chair John Christian Larsen explained, “This means that…
The U.S. Department of Agriculture has announced an April 26-29, 2011, public meeting of its National Organic Standards Board (NOSB), which will review recommendations pertaining to the National List of Allowed and Prohibited Substances. Under the Organic Foods Production Act, the list governs the synthetic substances that may be used, and the nonsynthetic substances that cannot be used, in organic production and handling operations. NOSB will consider exemptions and prohibitions for a variety of substances scheduled for sunset review, including ethanol, tetracycline, nickel, sodium nitrate, and newspaper and other recycled papers. It will also discuss animal handling, transit and slaughter recommendations, as well as other NOSB policy and procedure changes. The agency will accept pre-registration for public comments before April 10, 2011. See Federal Register, March 4, 2011.
The Institute of Medicine (IOM) Food and Nutrition Board’s Committee on Accelerating Progress in Obesity Prevention has announced a public information-gathering workshop on measurement strategies to combat the nation’s obesity problem. The draft agenda for the March 23-24, 2011, event in Irvine, California, indicates that a panel discussion moderated by Northwestern University Professor Ellen Wartella will focus on “Marketing and Industry Measures and Evaluations.” A live video recording of the workshop, funded by the Robert Wood Johnson Foundation and the Michael & Susan Dell Foundation, will be available on IOM’s Website and a taped version will reportedly be posted later. More information about the event is available here.
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